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Monday, February 20, 2012

Raqnel James Wins Her Case

Raqnel James won a just verdict, but when will real justice come?

Three years ago Fordham HS for the Arts principal Iris Blige had Raqnel arrested, paraded of out school in handcuffs, for threatening the principal. But the threatening letter, no one ever saw anyone aside from Blige with the letter in their possession. And today a judge, in finding Raqnel not guilty, agreed with her supporters and did not believe that Raqnel wrote it.
At the time, Lynne Winderbaum, United Federation of Teachers District Rep for Bronx High Schools (and one hell of an ESL teacher) organized a protest in front of the school. Four hundred teachers from dozens of schools showed up in support. Raqnel was not Iris Blige’s first victim – she fits the profile of an abusive administrator. How many teachers did she rubber room? U rate?  And those U ratings?  A year ago OSI found that she had inappropriately ordered APs to U teachers, sight unseen (and as a result was fined the equivalent of a car payment, for a year and a half). But having a teacher led out in handcuffs, threatened with deportation, enough was enough and chapter leaders and activists rallied loudly.
The charge was preposterous, and rightly rejected. But the charge was viciously and maliciously calculated – Raqnel is from Jamaica, an international teacher, and “due process” is not equally due all of us. She has been out of school for three years. She fought deportation; she fought criminal charges; she fought two dozen postponements.
The reward is sweet. Not guilty. It sounds that good. And another reward is putting her accuser on the stand, for none to believe.
But those bills. Those lost years. The mental anguish.
We have a just verdict. Now we need justice.

The New Evaluation Process Fails UFT Members; The Case of Mike Mullen

What's Wrong With The New Evaluation Deal For NYC Teachers, And How To Prove It

NYSUT's Richard Iannuzzi, UFT Mike Mulgrew, Gov. Andrew Cuomo

The Case of Mike Mullen by Betsy Combier
This past week we have seen Governor Andrew Cuomo, UFT President Mike Mulgrew, NYSUT President Richard Iannuzzi and State Ed Commissioner John King stand up together and announce that tenure rights are over, and Mayor Mike Bloomberg's campaign has been a complete success....oops! I mean, we heard from the three gentlemen mentioned above that there is a new, fair agreement signed sealed and delivered that will remove "bad" teachers from NYC's public schools. Same thing, as all "bad" teachers have tenure, and all teachers with tenure are "bad". Mikes (both of you) I have a bridge that you cant sell to me.

Below is a case of the NYC Department of Education going after a teacher for complaining about his Principal, after the Principal, in this case Richard Bost, sexually harassed his secretary, the teacher's girlfriend. When he, Bost, was rebuffed, he retaliated against the teacher.          

The teacher, Mike Mullen, was charged pursuant to 3020-a, and his NYSUT Attorney not only forbade any mention of what Bost did to him, his girlfriend, or anyone else, but told him that he had to resign, as he would be terminated. Mullen was scared: what if she, the NYSUT Attorney was correct? Finally he decided not to go along with the NYSUT lawyer, fired her, and hired a private attorney who bought the Gotcha Squad kool-aid and got him to sign his resignation, saying that this was the best idea since Mullen was in no position to fight this.

Mullen called me on the last day to revoke his resignation, and asked for my help - who could he turn to to revoke it? He did get his resignation revoked, and he went forward with a full hearing, and won.

 He stood up and fought for the truth, and is now back where he belongs, teaching.

Principal Richard Bost of Fordham

Leadership Academy in the Bronx was,

by all accounts - parents, students, teachers, UFT District Office - a principal "from hell". But no one could or would remove him from his position, even after there were rallys against him, complaints, documentation of his abuse of the people inside his building, and countless visits to UFT Bronx District leader, Jose Vargas. Until 2011. I wrote about his actions on my blog more than once, and yes, he was fired in June 2011, after what has been said was a five-year investigation. The wasted lives he left behind are most certainly not remedied, and I'm telling this story so that the process of keeping principals who abuse their staff as opposed to great teachers who should remain in their classrooms, ends.

This is a story also about how the UFT and NYSUT deliberately harm UFT members brought to 3020-a on bogus charges of incompetency, and how the Peer Intervention Program Plus ("PIP+") is the tool which gets rid of employees of the NYC DOE quickly and unfairly. PIP+ uses an "independent observer" who is not "independent" to give the Principal enough supporting false documentation to go for termination of the person who takes the program. The UFT, NYSUT, and the NYC DOE are intentionally lying to members as to the goal of PIP+. Mike's 3020-a Arbitrator, Roy N. Watanabe, Esq. ("Watanabe") didn't buy it, agreed with David's and my argument, and effectively exonerated Mike in his decision, available in four parts here:

Roy Watanabe decision pp. 1-20
Roy Watanabe decision pp. 21-43
Roy Watanabe decision pp. 44-66
Roy Watanabe decision pp. 67-84

Ms. Delia Travieso was the Department's Attorney at Mike's Hearing, I was the paralegal in this matter. Mike's case is a tale of revenge by Principal Bost so full of venom that it was almost easy to prove. By the way, NYSUT Attorneys will not bring in the backstory behind a "U" rating given to a teacher rated "S" for 10, 15, 20, even 30 years without any disciplinary action or "U-rating.".

How this happens is, in my opinion, important in 3020-a. NYSUT attorneys say the backstory is irrelevant.
NYSUT Attorneys refuse to provide the Hearing record with the unlawful, harassing, and often criminal acts of a principal. When I worked at the UFT I was told by every rep that everyone in the rubber rooms were guilty, and I was told to leave it at that. I was not allowed to look into the "investigators" from OEO, OSI, or SCI. In Mike's case, the inconsistencies of all the NYC DOE witnesses were brought in, and examined in detail on the record. The proof of the pudding is in the eating. The NYC DOE did not bring in Richard Bost to testify, and we asked Watanabe for a ruling of adverse inference against the Department.

Indeed, Mike's original NYSUT Attorney told him to resign. Mike was furious with the careless way the assigned NYSUT Attorney threw him and his case into the trash can. She evidently told him that he would never win, this was a cut and dry case of incompetence, and he should immediately resign. Teachers and staff at Bost's school knew me, so Mike contacted me, and I gave him the names of a few other Attorneys who he could speak to about taking his case.
Larry Cline and Tom Perkins
He hired Larry Cline and Tom Perkins, shysters of the highest order in my opinion. They say on their website that they do3020-a hearings, so if you want to be terminated, hire them. These two should be disbarred, and I am sorry to this day that I mentioned their names with possibly doing a 3020-a for Mike. Tom Perkins appeared for Mike at the hearing date after he fired his NYSUT attorney, (Mike asked for and was granted an open and public hearing, thank goodness!!!!) and a deal was offered that changed Mike's "U" rating to "S" as long as he resigned. 

Tom took Mike into a room to discuss, and my "friend"
 Victor Muallem threatened them with removal by the security guards if they did not clear out, as the rooms at 51 Chambers Street are for BOE personnel only (which, of course, Mike is). Evidently Tom did not understand that Victor meant what he said, and Tom did not leave right away, so Victor called security, and the next day, when Tom came back - for what was his last day - he had to wait in the lobby for a security guard to escort him upstairs to the sixth floor, on orders of the "Gotcha Squad". Tom "convinced" Mike to resign, and ran out of the building, never to be seen again. 

When I and Mike's friends and co-workers at Fordham heard that he had resigned, we were shocked. His co-workers heard that he had 7 days to revoke his resignation, and they were successful at convincing him to change his resignation and to go ahead with his 3020-a. Now he had to hire another attorney, so he hired me and one of the attorneys I work with. I believe we did the case right - we brought in the motive of Bost to get rid of Mike, and we brought in the paperwork on the PIP+ process that shows this is a program to terminate teachers, not to support them. In fact, I have writtenextensively about this as a fraud
 perpetrated by the UFT, NYSUT, the NYC DOE, and RMC, the "independent" party that is not "independent".

The most important part of my articles is the documents I obtained under FOIL (Freedom of Information) concerning the RMC Agreement
 and the RMC Training Manual. The RMC/DOE Agreement does not mention the UFT, because they were not a party. The Training Manual shows that the program is contracted by the NYC DOE, is run by the principal, and is set up to deny the PIP+ victim his or her due process rights by not adhering to the UFT contract - i.e., there are no pre-observations before a formal observation, and all written reports about a teacher's performance are given to the principal and not the teacher. The principal can alter anything written in the observations before the teacher even sees it, and if the principal wants termination, he or she makes sure that termination is the only option for the teacher.

Luckily, people dont lie very well. Good questions can confuse the most accomplished liar, and leave them confused. This is what happened here, where we came up with piercing questions that AP Ms. Palmer-Mullings could "not recall" the answer for. For example, why are the attendance sheets that Mike was charged with not reflective of the number of students enrolled in Mike's classes? We also brought in the fact that Palmer-Mullings was convicted of stealing $7000+ from the Parent's Association, and we asked about that. David's approach to this case was right on point: show the backstory, so that all the claims made by the NYC Department were seen as fake, or at least possibly untrue.  I showed that Bost retaliated against Mike and revenge was the fuel for his declaring Mike "incompetent". No other explanation fit, as Mike had all "S" ratings before 2008 when his girlfriend was harassed by Bost and left the school.

Here is an article I posted on my blog many months ago about PIP+:

The Terminator: PIP+ Observer
After spending almost three years investigating the PIP+ process of evaluating teachers, while I worked for the UFT and after, I have become what some people may describe as an Expert Witness to the errors and pitfalls of the program.

When a Principal wants to get rid of you, he or she will "offer" you the "remediation" of the PIP+ and tell you to sign the contract agreeing to participate. He or she may also add, if you hestitate, that if you do not sign up for the PIP+ then this information will be brought to a 3020-a and the arbitrator will see this as convincing evidence for your termination. DONT FALL FOR THIS!!!!!!!!!!!!!!!!!


In fact, a teacher said no, and at the 3020-a the
 NYC DOE Gotcha Squad lawyer tried to argue for termination based upon the refusal to participate, and arbitrator Randi Lowitt said that she would not consider any penalty for not participating in a voluntary program.

Sandra Kase, PIP+ Director at RMC, told an assembly of NYSUT attorneys (and a NYSUT Attorney told me), that the PIP+ is to help Principals get rid of staff, not to help teachers improve their classroom teaching skills.

Don't get caught, read the documents below. Also, when you read the Training Manual, you will see that the RMC Employee hired to observe you must model for you the constructs that he/she wants you to use. Ask your observer to model for you, and see what happens. Dont forget to have a secret tape recorder hidden in your pocket.

Oh, by the way, let me remind all those warm and fuzzy Department of Education and NYSUT/UFT people who desperately want me to stop writing on this blog and/or my website, I am not an attorney and the information below is just my opinion. Besides, you should have kept me on payroll so I would have had to continue to send my opinions to all the other blogs in town.

Here are two(2) truths:

If you signed up for PIP+ (Peer Intervention Program Plus), you probably were observed by someone who knows little or nothing about the subject area or the curriculum, and is in the school to serve the interests of the principal. The observer is there to complete and substantiate the claims of the administration of your school that you should be fired and you cannot improve under any circumstances.

When you go to 3020-a, on charges that you are an incompetent teacher, you will be terminated unless you defend your competency aggressively (videos, tapes, affirmations, letters in support, etc.) and submit to the arbitrator through your attorney the documents below.

How did this program start? For many years one of the objections teachers have had concerning the annual rating sheet is that the principal, who gives the rating, is biased. The argument is, if a principal is out to "get" you - fired, excessed, removed, re-assigned - by giving you two or more "U" ratings at the end of two school years, then this person will come into your classroom to observe you suddenly without notice, and then staple this informal observation to the rating sheet along with the 45 other formal and informal observations he/she did in the space of a month (this is a little exaggeration, but this is my blog, and I can exaggerate to make my point). This is not proper procedure. An observer is supposed to give you a date for a pre-observation, observe the scheduled class, and then discuss the observation with you later the same day or as soon as possible. Formal observations are supposed to be used not in a punitive way but to assist you in improving your teaching.

Randi Weingarten heard the complaints of members, and agreed to allow a program to start in 2007 called the PIP+ that would give some of the power to determine "incompetency" to an independent and neutral party, a PIP+ observer brought in from outside the school. The job of running the program was given to The RMC Corporation, as I found out after filing a Freedom of Information request for the PIP+ contract (I paid $52.00 to the NYC DOE). Here is the PIP+ agreement between the RMC Research Corporation and The New York City Department of Education (the UFT is not mentioned), OLS Contract Log No. 17053:

An Agreement By and Between the Board of Education of the City of New York and the RMC Research Corporation
 (pp. 1-53)
Request For Authorization
 (pp. 54-105)
 (pp. 106 -incomplete)

and here are the pages on the Training Manual, that show how the entire program is driven by the principal:

Peer Observation and Evaluation Part 1(#RO116)
Training Manual Part 2

By the way, I also FOIL'd the personnel file of Sandra Kase, and will post this soon on these pages.

The problem is that the Peer Intervention Program+ was never implemented correctly. RMC is a consulting group that works alongside The Gotcha Squad. I first heard this from a teacher who had signed up for PIP+, and taught 3rd grade (very successfully) and suddenly was told to switch to fifth grade. The principal from hell was driving all teachers away, the scores of the school were falling, everything was wrong. The PIP+ observer came in and told her (the teacher) that she, the observer, had taught 3rd grade in 1969 for 6 months, before moving to California. She asked what the Workshop Model was. Then, after ten weeks, told the Principal that the teacher was too incompetent to keep, that this tenured teacher was absolutely incapable of ever being remediated in any way and recommended termination. In another case, a PIP+ observer who had worked with the Principal several years earlier came to the school to end the career of a teacher who the principal wanted out because she wanted that position for her niece. etc.

At 3020-a, the arbitrators are respecting the "neutrality" of these observers, and their "professional opinions" to the extent that almost everyone who signed up is being given harsh penalties, which should be appealed (Article 7511, New York State Supreme Court). In other words, the arbirators believe them, and find them credible. You must prove otherwise.

So, what is a PIP+ victim to do?
1. The NYCDOE attorney will make a big point of the "fact" that the PIP+ is a collaboration of the UFT and the DOE (especially if you get Gotcha Squad attorney Dennis Da Costa, who treats Respondent teachers as serial killers - can someone report him to the First Department Disciplinary Committee? Or, send me your transcripts and I'll send them over, with a cover sheet) and submit to the arbitrator the UFT 2007 contract as if this was the agreement that RMC uses as their contract. This is not correct.
In the agreement above, look at on pp. 15-16 where says that the RMC Corporation is paid by the Chancellor and the Chancellor shall decide if the job is done well or not. This makes the RMC Corporation anything but neutral. Point out this to the arbitrator, and submit the agreement as evidence.

2. The manner in which the teacher is observed is key to proving that the PIP+ is a principal-driven tool to get rid of the teacher. The PIP+ observer gives his/her observations to the principal, once the observation is written...sometimes the principal does not give the observation to the teacher until weeks later. This cannot be the way a teacher is "helped". In order for a teacher to be assisted in his/her pedagogy, he/she must have immediate feedback. All training programs 'know' this, but the PIP+ program is a "Gotcha" program, so there is no remediation involved. (For a teacher to be fired there must have been a remediation strategy in place that failed over time to make the teacher capable of teaching).
Have your attorney point out the time lags between the observation and the discussion with the teacher of the observation, or the day that the teacher gets the observation comments. And, if the year-end rating is stapled to informal observations, counseling memos and letters to file, ask the arbitrator to have the NYC DOE attorney submit only the formal observations with the rating sheet, as allowed in the UFT contract.

3. Have a student witness come in and say what a great teacher you were, and how well you performed in your class.
Arbitrators I know give alot of weight to a child who, when he/she enters the room, seems very happy to see his/her teacher, and testifies about how wonderful the teacher is in the classroom. I remember one hearing I sat in on when a charming seven year-old was asked by the NYC DOE to testify against her teacher. The little girl came into the room and waved to the teacher, and said a big hello. The arbitrator told her to tell the truth, she said that she would, and then she started scribbling on a little piece of paper. The arbitrator asked her if she would like a bigger sheet (probably thinking this would keep her from figgiting too much). She said yes, and proceeded to answer questions while scribbling on her paper with her red pen.
The DOE Attorney wanted the girl to admit that the teacher had pinched her nose. The girl kept saying she didnt recall anything like that. Getting a little frustrated, the DOE attorney said loudly (and in a leading way) DONT YOU REMEMBER THAT YOUR TEACHER PINCHED YOUR NOSE DURING CLASS???? The girl said something to the effect, "yes, I guess so".
She then finished scribbling, and I was interested in seeing what she had drawn. The little girl handed the artbitrator her sheet of paper with the following in big red letters: "NO". I heard the arbitrator (one of my personal favorites) ask the smart-as-a-whip little witness whether he could have her "drawing", and after she said "yes", he slipped the paper into his file of exhibits, saying to her, "thank you."
So kool.

Mike Mullen (Mike) is a member of the National Guard and a math teacher who has an excellent record as a teacher. He HAD an excellent record, that is, until the Principal Bost took a liking to the school payroll secretary, and sexually abused her in 2008. This employee happened to be dating Mike Mullen at the time. She rebuffed Bost, and was removed from the school. She came in and testified about her abuse at the hands of Bost.

Bost retaliated against Mike by using his Assistant Principal, Ms. Palmer-Mullings, to be his ally in evaluating Mike as an incompetent teacher, starting in 2008. As Mike had to leave for duty sometimes quickly, Bost told him that he should become a soldier full time, and stop blotching up Bost's schedule for the kids. Bost made it very clear that Mike's responsibilities to the United States Government came second to his scheduling of classes for Mike. In order to make Mike suffer, Bost took his classes away from him, and when Mike came back made it impossible for him to catch up.

The biggest hurdle that Mike, David and I had to overcome was the PIP+ observer, Sue Lichtenstein, and her reports to Bost the Mike was not only incompetent but hopelessly so. She testified that he could not improve no matter what was done to help him. Her entire testimony was false, as was Palmer-Mullings and Delia Travieso's overview. The job was to give Hearing Officer Watanabe undeniable proof that this was the fact of the case.

We went full steam ahead into the fake evaluations of Mike's performance. Luckily for us, the RMC Training Manual was accepted as evidence by Watanabe. I believed then that we might win the case, and I was correct. The protocols in the RMC Training Manual do not agree with the UFT contract in the observing of teaching staff who get a "U" rating.

The information below is about observations and evaluations. This information is the process REQUIRED by contract and shows that the PIP+ program violated the contract with the UFT and Teaching For the 21st Century, but also that Sue Lichtenstein's observations can hold no weight. Here is the link:
UFT rights observation-evaluation
Observations and evaluations fall under the general category of performance review, which is cited in Article 8J of the UFT contract. Performance reviews are intended to help teachers accomplish their educational goals with their students.

Currently, the UFT and the Department of Education have an agreed-upon plan for teacher evaluation that is incorporated in the contract and is spelled out in the document “Teaching for the 21st Century.”
Under that plan, tenured teachers, in consultation with their supervisors, may choose either the “performance option” or the traditional classroom observation as the basis for their performance review. New and probationary teachers at all levels should expect to have formal, traditional classroom observations several times a year. If you think you are being excessively observed, keep a log of the visits and speak to your chapter leader. A formal observation is one which includes pre- and post-observation conferences and written feedback and/or comments. A supervisor has the right to enter a teacher’s class unannounced. However, such informal visits generally are not written up. If your supervisor writes up such an informal observation and if it is negative in nature, you should ask in writing for a post-observation conference with the supervisor.

A pre-conference may be: 1. one-to-one conferences between the supervisor and teacher; 2. small group meetings; or 3. a written notification outlining a menu of possible instructional areas to be evaluated during the formal observation, with teacher input on the area(s) to be addressed.
One-to-one conferences are required for all formal observations of probationary teachers or U-rated teachers.

Tenured teachers who have been rated satisfactory
 are entitled to an individual, lesson-specific pre-observation conference if they request it in writing. The UFT recommends that all teachers make such a request at the beginning of each school year. A written request for a one-to-one conference must be granted (see Chief Executive Memorandum # 80, 1997-98). If your written request is denied, you may grieve under Article 8J and Article 20 of the teachers’ contract.

Following the observation, you should write down your recollections of the lesson, which will be helpful to you in the post-observation conference with your supervisor.
You will receive a written report of the observation after the post-observation conference and will be asked to sign it to indicate that you have seen it, whether or not you agree with it. If you believe the observation was improper, you should speak to your chapter leader, who can help you formulate a written response and advise you of the other options open to you. Your response must be attached to the original report and placed with the original in your file.

The new evaluation and improvement plan for teachers (2010)
In May 2010, the UFT, NYSUT and the State Education Department agreed to create a new teacher evaluation and improvement plan.

This new evaluation system will include content knowledge, pedagogical practices, instructional delivery, classroom management, knowledge of student development, use of assessment techniques/data, effective collaborative relationships, and reflection of teaching practices (criteria that currently exist) as well as multiple measures of student learning such as test scores, classroom work, presentations and projects. The mix of those measures in New York City will be negotiated between the UFT and the Department of Education, but the use of state test scores will be capped at 25 percent.
The new system will take effect starting in the 2011-2012 school year. The union will be at the table during the 2010-11 school year working out the details of the agreement and determining the criteria to be used.

For the
 details, read this Q and A on the new [2010] plan. 
Useful Resources for Observations & Evaluations
Contract Article 8J
Know Your Rights: Observations and Evaluations
Teaching for the 21st Century
Chief Executive Memorandum #80
Rating Pedagogical Staff Members
Definitions of formal and informal observations
New York Teacher news story on new evaluation and improvement plan for teachers
UFT President’s Perspective on the new evaluation and improvement plan

All of the above have been on the website, and all are routinely ignored at 3020-a by arbitrators, the NYC Department of Education attorneys, and NYSUT.
The observation process above is not in the RMC PIP+ protocols. Once a teacher signs on to PIP+, their career is over, with the principal using the eyes of the "independent" observer to convict the employee.

The case Elentuck v Green (Elentuck v. Green 
(202 A.D.2d 425) is key here, and I want to thank my friend Harvey Elentuck for his input over the years as far as FOIL requests and the "law" of observation reports. In his case, Harvey Elentuck requested public access to observation reports under FOIL and was denied. The Appellate Division, Second Department, agreed with the lower court, saying, in effect, that there are no facts or statistics in observation reports, and that the reports are intra-agency materials which are not final. 

According to the Appellate Court, "The lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations...":

decided: March 7, 1994.


Harvey M. Elentuck, Jamaica, N.Y., appellant pro se.

Paul A. Crotty, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Carita R. Zimmerman of counsel), for respondents.

Guy James Mangano, P.J., VINCENT Pizzuto, Myriam J. Altman, Gabriel M. Krausman, JJ.


In a proceeding pursuant to CPLR article 78 to compel the respondents to give the petitioner access to certain documents, the petitioner appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ramirez, J.), dated February 11, 1992, as, upon reargument, adhered to its original determination in an order and judgment (one paper) of the same court dated November 16, 1989, which granted the petition only to the extent of permitting the petitioner access only to certain hearing panel reports prepared pursuant to Education Law

Ordered that the order is affirmed insofar as appealed from, with costs.

The petitioner, who is a teacher, sought disclosure, pursuant to the Freedom of Information Law (see, Public Officers Law, art 6), of various documents related to the termination of his employment, including, inter alia, "all Chancellor's Committee reports, Education Law
§ 3020-a reports, and 'unsatisfactory' lesson observation reports in the possession of Community School District/Board 24". We find that the court properly denied access to all three categories of reports as intra-agency materials which are not statistical or factual tabulations or data, instructions to staff that affect the public, or final agency policy or determinations (see, Public Officers Law § 87[2][g]). Chancellor's Committee reports consist of findings and recommendations regarding personnel actions to be taken by the Board of Education. The reports are prepared to assist the Chancellor, and are not binding. Similarly, hearing panel reports relating to Education Law § 3020-a consist of findings and recommendations subject to challenge by an appeal to the State Commissioner of Education, are not binding on either the Board of Education or the Commissioner of Education, and do not constitute final agency determinations. Accordingly, the requested Chancellor's Committee reports and hearing panel reports are predecisional material exempt from disclosure under Public Officers Law § 87(2)(g) (see, Matter of McAulay v Board of Educ. of City of N.Y., 61 A.D.2d 1048, 403 N.Y.S.2d 116, affd 49 N.Y.2d 659; Matter of Herald Co. v School Dist. of City of Syracuse, 104 Misc. 2d 1041, 1046-1047, 430 N.Y.S.2d 460).

The lesson observation reports consist solely of advice, criticisms, evaluations, and recommendations prepared by the school assistant principal regarding lesson preparation and classroom performance. As such, these reports fall squarely within the protection of Public Officers Law
§ 87(2)(g) (see, Matter of Town of Oyster Bay v Williams, 134 A.D.2d 267, 268, 520 N.Y.S.2d 599).

We have reviewed the petitioner's remaining contentions and find them to be without merit.

In Canty v. NYC Board of Education (312 F. Supp. 254), the United States District Court of the Southern District of New York stated:

"The terms 'arbitrary' and 'capricious' embrace a concept which emerges from the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and operates to guarantee that the acts of government will be grounded on established legal principles and have a rational factual basis. A decision is arbitrary or capricious when it is not supported by evidence or when there is no reasonable justification for the decision."

So here we are, currently reviewing cases where teachers face termination by NYC Department of Education vendors whose observations are not factual but simply non-final opinions. No one is getting the observation process right.  How does this reach Constitutional due process?